MELVEE WANEL TUCKER, PETITIONER,
v.
THE STATE OF FLORIDA, RESPONDENT
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A trial court lacks authority to vacate a sentence that has already been served, even if the sentence was illegal or invalid.
[1] A trial court loses jurisdiction and violates the Double Jeopardy Clause by vacating a sentence that has already been served, even if the sentence was illegal or invalid.
[2] The proper procedure for the State to challenge a below-guidelines sentence imposed without written reasons is by way of an appeal.
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Join FLexlaw to unlock all legal intelligencePetitioner accepted a plea, received a sentence that was immediately complete due to time served, and was placed on probation which was then terminate…
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Melvee Wanel Tucker petitions this Court for issuance of a writ of habeas corpus, alleging that he is being incarcerated illegally in lower court case number F10-31496.
Petitioner was arrested on November 2, 2010 for purchase of cocaine and possession of cocaine. Bond was set at $5000, which Petitioner posted the next day. On November 24, 2010, the State filed an information charging Petitioner with possession of cocaine.1 At some point between the day of his pretrial release in this case and May 19, 2011, Petitioner was taken into custody for an outstanding detainer on a parole violation.2 However, he was not taken into custody on the instant case.
On May 19, 2011, Petitioner accepted a court-offered plea. Petitioner pled nolo contendere to the charge and the trial court withheld adjudication and placed Petitioner on one day of probation. A special condition of the probation was jail time equal to the amount of time he had already served in this case.3 This meant, in effect, *38that his sentence was complete upon the court’s acceptance of the plea and entry of the judgment and sentence. Because Petitioner had already completed the incarceration which was a special condition of his probation, the trial court “terminated” Petitioner’s probation following acceptance of the plea. The court then discharged the $5000 bond Petitioner had previously posted.
The court’s plea offer was made over the objection of the State. The sentence departed below the sentencing guidelines, and the trial court did not provide written reasons for the departure. See Fla.R.Crim. P. 3.701(d)(11) and Pope v. State, 561 So.2d 554 (Fla.1990) (holding district court correctly reversed a departure sentence where the trial court failed to provide written reasons for the departure).
At the time of the plea, the State indicated that it would appeal the sentence. However, the State did not appeal the sentence. Instead, on May 27, 2011, the trial court, over Petitioner’s objection, sua sponte vacated the judgment and sentence, and set the case for trial. The trial court indicated it was vacating the sentence because it was “illegal” and because the State had indicated it was going to appeal the sentence.
The State concedes, and we agree, that the trial court did not have the authority to vacate a sentence which had already been served. Once Petitioner had completed his sentence, the trial court no longer had authority, over Petitioner’s objection, to vacate the judgment and sentence, even if it was illegal or invalid. Maybin v. State, 884 So.2d 1174 (Fla. 2d DCA 2004). As our sister court explained in Maybin: “Once a sentence has already been served, even if it is an illegal sentence or an invalid sentence, the trial court loses jurisdiction and violates the Double Jeopardy Clause by reasserting jurisdiction and resentencing the defendant to an increased sentence.” Id. at 1175. See also, Johnson v. State, 881 So.2d 706 (Fla. 3d DCA 2004). The proper procedure for the State to challenge a below-guidelines sentence imposed without written reasons is by way of an appeal. Gartrell v. State, 626 So.2d 1364 (Fla.1993).
We therefore grant the petition insofar as it seeks a reinstatement of the judgment and sentence imposed on May 19, 2011 in case number F10-31496, as that sentence was fully completed on the very day it was imposed. However, we deny the petition insofar as it seeks Petitioner’s release from custody. Although Petitioner is in custody, he has failed to provide any record support for his claim that he is currently in custody on this case. The State contends, with apparent accuracy, that Petitioner is not in custody on the instant case but rather is being held in custody on the detainer issued for his parole violation.
As we are confident that the trial court will proceed in a manner consistent with this opinion, we withhold formal issuance of the writ.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Wykretowicz v. State, 264 So. 3d 389 (Fla. 5th DCA 2019)…court’s intent to withhold an adjudication of guilt here, it should have placed Wykretowicz on probation, withheld the adjudication of guilt, and imposed the sixty days of incarceration as a special condition of the probation. See Tucker v. State, 78 So. 3d 36, 37 n.3 (Fla. 3d DCA 2012) (citing State v. Green, 581 So. 2d 1008, 1009 (Fla. 4th DCA 1991)). However, because the State has not challenged the sentence in this direct appeal, this issue has not been preserved for our present review.…
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Fowler v. State, 225 So. 3d 1005 (Fla. 1st DCA 2017)…es the trial court lose its discretion to withhold adjudication of . guilt. See § 948.06(2)(b) & (e), Fla. Stat. (2014); State v. Countryman, 132 So. 3d 922 (Fla. 1st DCA 2014); State v. Curilly, 126 So. 3d 1244 (Fla. 1st DCA 2013); Tucker v, State, 78 So. 3d 36 (Fla. 3d DCA 2012). In Appellant’s case, the trial court did not revoke his probation. We hold, therefore, that the trial court erred in believing it had no choice but to adjudicate Appellant;guilty because it had imposed a conditional suspended se…
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State v. Jene-Charles, 253 So. 3d 109 (Fla. 3d DCA 2018)…allowed by law, the judge may withhold an adjudication of guilt if the judge places the defendant on probation.” “This is true even if the court is sentencing the defendant to time . . . already served in jail prior to the plea.” Tucker v. State, 78 So. 3d 36, 37 n. 3 (Fla. 3d DCA 2012). Under appropriate circumstances, the court may “withhold adjudication, place a defendant on probation, and impose a period of incarceration as a special condition of that probation, so long as the period of incarcera…
Authorities Cited
- Pope v. State, 561 So. 2d 554 (Fla. 1990)
- Gartrell v. State, 626 So. 2d 1364 (Fla. 1993)
- Maybin v. State, 884 So. 2d 1174 (Fla. 2d DCA 2004)
- Johnson v. State, 881 So. 2d 706 (Fla. 3d DCA 2004)
- Tyler v. State, 581 So. 2d 1008 (Fla. 3d DCA 1991)
- State v. Green, 581 So. 2d 1008 (Fla. 4th DCA 1991)
- McCLELLAN v. State, 819 So. 2d 946 (Fla. 2d DCA 2002)